Vantage
Point
More than one year has passed since the Deepwater Horizon well blowout in the Gulf of Mexico. This issue of NR&E
explores the resulting increased scrutiny of the oil and gas industry and changes in the practice of oil and gas energy, environmental, and resources law. We have included an interview
of David Hayes, Deputy Secretary of the U.S. Department of
the Interior (Interior), and feature articles on onshore as well
as offshore oil and gas operations. Two of the feature articles
offer an international perspective.
The interview of David Hayes covers a myriad of issues.
Among the issues he discusses are his role as Deputy Secretary
of Interior, lessons learned from the response to the Gulf oil
spill, Interior’s priority areas, energy portfolio and jurisdictional breadth as well as endangered species and bipartisan efforts.
He also offers advice to young lawyers considering a career
with Interior.
Joan Bondareff explores President Obama’s new ocean
policy for the United States and call for the creation of coastal
and marine spatial plans along our country’s coasts. Her article
reviews the history, legal authority, and impact on deepwater
drilling and other energy uses of coastal and marine spatial
planning and proposes such planning as an alternative to permit battles and case-by-case review of each new use of offshore
waters. She predicts that development of these plans may
encourage the development of renewable energy and deepwater drilling for oil and gas.
Charles Franklin and Lori Warner examine the use of dispersants as a tool in oil spill cleanup operations. They discuss
the use of dispersants in response to the Deepwater Horizon
oil spill in the Gulf and explore the historic use and regulation of dispersants in oil spill responses as well as recent calls
to impose new restrictions on dispersant use. They conclude
that while the use and regulation of dispersants may change,
dispersants will continue to be used to respond to oil spills
from deepwater drilling accidents.
As natural resources damaged as a result of the Gulf oil spill
are being assessed, Robert Copple proposes the use of alternative dispute resolution (ADR) methods to resolve natural
resource damages (NRD) claims that arise out of the spill. He
identifies various impediments to resolution of NRD claims
and explains how to establish a stepped process for ADR during the assessment and restoration planning and implementation phases of NRD claims, including public participation and
facilitation, pre-litigation mediation, post-claim mediation,
various forms of issue-specific arbitration, and mini trials to
resolve issues when ADR has not been successful.
Connie Rogers explores National Environmental Policy
Act (NEPA) practice post-Deepwater Horizon. She discusses
reorganizational changes at the Minerals Management Service,
“categorical exclusions” under NEPA, “statutory exemptions”
from NEPA requirements, and recommendations for reform.
Her article offers insight on NEPA challenges going forward.
Roger Martella, Bryon Taylor, and Jim Wedeking examine
U.S. EPA’s policy of aggregating multiple emission points into
a single “stationary source” for permitting oil and gas facilities.
They discuss U.S. EPA’s interpretation of the term “contiguous or
Published in Natural Resources & Environment Volume 26, Number 2, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
adjacent” in the regulatory definition of “stationary source,” the
“interrelatedness” test that the agency has been applying for aggregation in informal source determinations, and U.S. EPA guidance memoranda on aggregation for the oil and gas industry. The
authors explain the practical problems associated with looking to
operational relationship in oil and gas operations to determine
aggregation. They identify oil and gas cases in which U.S. EPA’s
aggregation policy is being challenged in court and predict that
U.S. EPA’s policy will not withstand judicial scrutiny.
Barclay Nicholson and Kadian Blanson focus on hydraulic
fracturing litigation. They review recent lawsuits filed by landowners in various states against oil and gas drilling companies
complaining of groundwater contamination. They offer that
while these cases and other cases yet to be filed work their way
through the judicial system, time will tell who will have the
final word on the safety of hydraulic fracturing—Congress,
U.S. EPA, states, courts, industry, or the public.
Thomas Swartz examines hydraulic fracturing from the
perspective of the environmental risks associated with the
technology and the management of those risks. He explains
hydraulic fracturing, examines the environmental risks associated with it, and discusses the allocation of risk among the
parties involved in the drilling and completion of a shale gas
well. He proposes insurance as a means to transfer and manage
risks associated with hydraulic fracturing.
Catherine Emmett and James Stuhltrager examine the
existing international and national laws governing Arctic oil
production. They explore the ability of this framework to preserve the Arctic’s unique ecosystem while oil exploration and
production in the Arctic rise in response to the world’s growing demand for energy. They propose that a new operational
agreement, consistent with the United Nations Convention
on the Law of the Sea, is needed among the Arctic’s six littoral nations—United States, Canada, Russia, Iceland, Norway,
and Denmark—to protect the Arctic environment.
Katia Opalka offers a view from Canada. She discusses
Canada’s environmental law framework for the oil and gas
industry and explains the roles played by the federal government and provinces in environmental protection and natural
resources development. She provides an update on legal issues
and challenges involved in opening up the North, developing
unconventional deposits, and forging new trade routes.
Ricardo Silva explains that following the Gulf oil spill and
the Obama administration’s moratorium, deepwater drilling rigs
moved from the Gulf of Mexico to other regions, including off
the coast of Angola. He discusses how the Angolan authorities
have regulated the environmental aspects of the offshore oil industry, the current regulatory and enforcement trends, and how
oil companies can react in case a disaster occurs in the future.
Gale Lea Rubrecht
Issue Editor
Published in Natural Resources & Environment Volume 26, Number 2, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.